Archives for August 7, 2014

Someone told me about MS Fitness Challenge. Great organization; you should check them out. The founder David Lyons is in showbiz, so they get a lot of celebrity endorsements. David did a terrific interview of me for his blog. I just looked at it again, and it gave me the idea for this post.

All MS athletes share symptoms that would stop us if we let them. The trick is to make them irrelevant. Well-meaning people at the gym sometimes ask how I’m feeling, whether I’m having a good or bad day. I’ve learned to pause and explain that I don’t think in those terms. They aren’t helpful. If I paid attention to how I feel, I’d never show up, and I sure wouldn’t keep going when it gets tough.

And it does get tough. You do this, you suffer. Not whining, just sayin’.

The MS symptoms create practical challenges beyond the workout itself, too — like getting off the machine when I’m done. I can barely walk; it takes all my focus to cross about 20 feet to sit down. I drag myself along and hope nobody is noticing, and one time I took a facer. Lately I’ve been wondering if I should just bring my cane. Same thing with walking down the stairs to leave the building. These days I mostly take the elevator.

I work out 5 days a week on average, with goals for every workout and for the week. I alternate strength, stamina, and speed workouts, and something I call “heart elasticity” training. (Did one of those yesterday. Two hours all out. Looked like I was standing under a rain spout, which is something for a guy with MS, because one of things you lose is your body’s ability to cool itself. Guess my training has reversed that.)

The differences in workouts are a matter of metrics: varying machine settings such as stride height, length, and resistance, and watching how they interact with body metrics such as stride frequency, target heartbeat, breathing pattern, even how much I sweat. On stamina runs I can zone out, but the other workouts require constant attention, changing the machine settings and monitoring body metrics.

Daily workouts are a couple hours, weekends take longer, but training is really 24/7. It’s a whole, integrated practice embracing details like how much I sleep and when and what I eat. Mostly, there’s an action/recovery cycle to be observed. Cut corners, you suffer. Like I said…

The weekly cycle culminates in a major weekend workout. This past Sunday I went three hours, in one-hour segments. The first was for speed, the second (my fastest, as is usually the case) for combined speed and strength, and the third for stamina. Around 2:50:00 I hit the point where my right foot spazzes out so entirely it turns out like a ballet dancer’s. I’ve learned to pull it back straight by sheer focus, and can keep it there for 20 minutes; on Sunday I only had to deal with it for the final 10.

The Open Stride machine is stingy about mileage: best I can tell, it credits just under half what a regular elliptical machine gives you. Sunday it gave me 15.35 begrudging miles — not much to show for 3 hours and 2,000 calories. Curiously, when I go that hard that long, my feet and legs often work better than they do after a shorter workout. That was the case yesterday.

The Colorado Court of Appeals issued its opinion in Idowu v. Nesbitton Thursday, July 31, 2014.

Overtime Compensation—Retroactive Cancellation of Approved and Taken Leave Time for Essential State Employees—CRS § 24-50-104.5(1).

Plaintiffs Idowu and Whitfield are employed as Health Care Tech IIIs at the Colorado State Veterans Nursing Home at Fitzsimons (Fitzsimons), a facility operated by the Colorado Department of Human Services (DHS). Plaintiff Steele is employed at Fitzsimons as a Nurse III. Plaintiffs are designated as “essential” state employees. CRS § 24-50-104.5(1) provides that authorized paid leave time counts as work time for purposes of providing overtime compensation to essential state employees.

Plaintiffs each received approval from their supervisors to take paid leave time, which, when combined with their work time, totaled more than forty hours in the workweek. Following the end of the relevant pay period, DHS, acting pursuant to a state personnel regulation allowing agencies to “deny, delay, or cancel leave” to reduce overtime liability, adjusted plaintiffs’ timesheets to reflect forty hours of work for the week. Plaintiffs grieved the alterations to their timesheets. The administrator of Fitzsimons denied the grievances.

Plaintiffs petitioned the State Personnel Board (Board), and the grievances were reviewed by defendant, the Executive Director of the Colorado Department of Personnel and Administration (Director), who upheld the denials. The district court upheld the Director’s decision. Plaintiffs appealed.

The Court of Appeals first upheld the denial of Steele’s grievance as untimely. Steele had ten days after learning Fitzsimons had reduced her sick hours to file a grievance. She filed it twenty-three days after receiving her paycheck.

The Court then turned to Idowu and Whitfield’s contention that the Director erroneously applied Regulation 3-34 and the district court erroneously interpreted CRS § 24-50-104.5(1) to allow Fitzsimons to cancel previously approved leave time that had been taken by them. The Court examined the statutory language and found no discretion in the agency to withdraw its authorization once an employee had acted in reliance on the authorization by taking the requested leave (as opposed to withdrawing the authorization before the employee took the requested leave). The Court also found that the Director cannot enact a regulation that would allow her to avoid the mandate in CRS § 24-50-104 requiring that authorized paid leave be counted toward the work of essential employees.

Accordingly, the judgment was reversed in regard to Idowu and Whitfield’s complaints. The matter was remanded for an entry of an order requiring that they be awarded back pay in the amount of overtime they would have received had their periods of authorized paid leave been counted toward the calculation of overtime. The judgment was affirmed in regard to Steele’s grievance.

The Colorado Court of Appeals issued its opinion in People v. Nozolino on Thursday, July 31, 2014.

Witness Tampering—Evidence—Protected Speech—Recusal.

In 2001, someone fired shots into the home of Nozolino’s ex-wife’s divorce attorney. Later that year, shots were fired into the home of Judge Gilbert Martinez of the Fourth Judicial District, who presided over portions of Nozolino’s divorce case. In 2002, the divorce attorney was shot in the face. In 2008, a man who allegedly had an affair with Nozolino’s ex-wife was fatally shot outside his home. Nozolino instructed numerous witnesses regarding these incidents not to cooperate or communicate with the police or provide any testimony. Based on these communications, the grand jury indicted Nozolino on five counts of witness tampering.

On appeal, Nozolino contended that there was insufficient evidence to support his convictions for counts 4 and 5, the witness tampering counts related to his mother and brother. The prosecution must present evidence that the defendant attempted to induce a witness either to testify falsely or to unlawfully withhold testimony. Nozolino sent an e-mail to his mother and brother recommending that they not cooperate with the police. Standing alone, the e-mails neither advise nor advocate unlawful withholding of testimony. Accordingly, Nozolino’s convictions for witness tampering with respect to counts 4 and 5 were vacated.

The Court of Appeals found that the witness tampering statute is facially constitutional. Therefore, Nozolino’s argument that the witness tampering statute is unconstitutional and infringes on his right to free speech failed.

Nozolino contended that his distribution of pre-printed statements to witnesses Feller and Shrecengost to invoke their right not to testify is akin to the public leafleting and is protected speech. However, Nozolino’s actions were not directed to the general public, did not occur in a public forum, and did not address issues of general public concern. Rather, Nozolino’s pre-printed statements were targeted at specific individuals, were distributed privately, and concerned matters of self-interest. The preprinted statements attempted to induce the witnesses to unlawfully withhold testimony in violation of the witness tampering statute. Therefore, they fall within the proscriptions of the witness tampering statute and the statute is not unconstitutional as applied to Nozolino.

Finally, the district court did not err in finding that the jury instruction regarding disrupting a lawful assembly did not “fit the facts of the case at all.” The judgment was affirmed in part and reversed in part, and the case was remanded to the district court with directions to enter judgment of acquittal on counts 4 and 5.

The Colorado Court of Appeals issued its opinion in People v. Aryee on Thursday, July 31, 2014.

Sexual Assault on a Child—District Attorney—Disqualification—Fifth Amendment—Evidence—Age of Victim.

Aryee was the pastor of a church that was located in his home. The teenage victim, K.W., and her family became friends with Aryee when they moved to Denver and began attending his church. In 2008, Aryee and K.W. engaged in sexual intercourse resulting in a child. Aryee claimed the acts were consensual and occurred three times. K.W. claimed that Aryee forced himself on her nine or more times. A jury found Aryee guilty of aggravated sexual assault on a child and numerous counts of sexual assault on a child by one in a position of trust.

On appeal, Aryee contended that the trial court erred by disqualifying the Adams County District Attorney’s Office and appointing two Denver County district attorneys as special prosecutors. The district attorney requested her own disqualification. The filing of the motion seeking disqualification is all the statute requires; therefore, the trial court did not err in granting such request and disqualifying the district attorney.

Aryee also contended that the trial court violated his Fifth Amendment rights by admitting statements he made to the police after allegedly invoking his right to counsel. It is unclear, however, whether Aryee was requesting an attorney at that time, or whether he only wanted to speak to one before giving a DNA sample. Considering the totality of the circumstances, Aryee did not make an unambiguous and unequivocal request for counsel. Thus, because Aryee’s statement was ambiguous, the detective was not required to cease all questioning, and the trial court did not err by admitting such statements.

Aryee further contended that the People failed to present sufficient evidence of K.W.’s age to support his convictions. K.W. was born in war-torn Sierra Leone and has no birth certificate. However, S.W., who has taken care of K.W. since birth, testified that K.W. was born on June 6, 1993. Additional evidence was presented regarding K.W.’s age, from which a reasonable jury could have concluded that K.W. was 15 years old at the time of the first incident and between 15 and 18 years old during the following incidents.

Maria Letitia Gutierrez de Lopez (Gutierrez), along with co-defendant Jesus Cabral-Ramirez (Cabral), was caught attempting to transport illegal aliens from El Paso, Texas to Denver, Colorado by federal law enforcement officers as part of a sting operation. In 2010, FBI and Border Patrol agents initiated “Operation Desert Tolls,” a joint investigation into alien-smuggling operations in New Mexico, Texas, and Colorado. In June 2011, agents apprehended “John Smith,” who agreed to become an informant for the FBI. In November 2011, Smith was contacted by Cabral, who offered to put Smith in touch with Gutierrez to “arrange for work” smuggling undocumented aliens away from the border. Gutierrez called Smith regarding the transport of a person later identified as Eneldo Valenzuela-Carrillo. The government recorded various conversations between Gutierrez and Smith and Cabral and Smith regarding the transport and payment. On November 21, 2011, Smith, Cabral, and Gutierrez began the transport of Valenzuela-Carrillo. Gutierrez picked up the payment money for the transport at a Walmart money center and distributed it to herself, Smith, and Cabral. However, federal agents arranged for Gutierrez’s vehicle to be stopped south of Santa Fe, where they took Valenzuela-Carrillo and another suspected alien into custody. Gutierrez was not arrested at that time.

In May 2012, Gutierrez was indicted by a federal grand jury on one count of conspiring to transport undocumented aliens, and she was arrested by FBI agents in June 2012. She pled not guilty. At trial, the government sought to prove that Valenzuela-Carrillo was unlawfully present in the United States, but they had deported him prior to trial, so they introduced testimony from Senior Border Patrol Agent Knoll instead to prove Valenzuela-Carrillo’s status as an undocumented alien. The government also used Knoll’s testimony to support their theory that Gutierrez intended to “further” Valenzuela-Carrillo’s illegal presence by transporting him away from the border. Over the defense’s objections, Knoll provided expert testimony on the alien smuggling trade. The government also offered testimony from two confidential informants, who requested anonymity because of the involvement of a Mexican drug cartel’s connection to the case. The two witnesses, who testified as “John Smith” and “James Jones,” testified regarding their roles in arranging transportation and payment with Gutierrez. The government supplied background information including criminal history, compensation figures for cooperating with the FBI, and immigration status, but refused to disclose their true identities.

Gutierrez was convicted as charged. She appealed, contending that the district court erred in allowing (1) Knoll to testify regarding Valenzuela-Carrillo’s immigration status in violation of the Confrontation Clause and Federal Rules of Evidence regarding hearsay; (2) Knoll to offer expert testimony unhelpful to the jury; and (3) the two confidential informants to testify anonymously in violation of the Confrontation Clause. The Tenth Circuit addressed each claim in turn.

At trial, Knoll testified that he personally retrieved the two individuals from Gutierrez’s vehicle for processing. When he could not remember their names, the prosecution briefly showed him their immigration files to refresh his memory. Defense counsel objected, concerned that Knoll would introduce evidence from these forms regarding the two individuals’ immigration status, but the district court allowed the prosecution to show Knoll the files. On appeal, Gutierrez argued that this violated FRE 602 regarding personal knowledge, but the Tenth Circuit disagreed, finding that Knoll’s testimony supported a conclusion that he had personal knowledge of the immigration status of the two aliens. Gutierrez also argued that Knoll’s testimony violated the Confrontation Clause, but again the Tenth Circuit disagreed because Knoll was present at trial and defense had the opportunity to cross-examine him.

Next, Gutierrez asserted that Knoll’s testimony was unhelpful to the jury. Before trial, defense moved in limine to exclude Knoll’s proffered expert testimony on several grounds, but the district court denied the motion, reasoning that Knoll was qualified to testify as an expert due to his experience as a senior border patrol agent, and the testimony would be reliable and helpful to the jury. Defense counsel again objected at trial under FRE 702(a)’s helpfulness standard. The Tenth Circuit reviewed the district court’s decision to allow the testimony and found no abuse of discretion. The Tenth Circuit opined that Knoll’s testimony would allow insight into the alien smuggling trade and the function and locality of border patrol agents that the average juror would not have, and affirmed the district court.

Finally, turning to the testimony of the confidential informants, the Tenth Circuit found ample reason for protecting their identities. The government requested anonymity for security reasons, worried that if the names were released in open court, that information would make it back to the Mexican drug cartels to which the informants were connected. The government also noted that its investigation was ongoing and at least one of the informants would continue to provide information. The Tenth Circuit agreed with Gutierrez that the government failed to make an adequate showing of the need for secrecy, since the government’s assertions of risk to the informants were generalized statements that anyone who testifies against a cartel faces danger. However, despite the government’s inadequate showing of the need for secrecy, the Tenth Circuit ruled that Gutierrez was provided ample information for Confrontation Clause purposes, particularly because the two informants testified in person and the government provided significant impeachment material. The Tenth Circuit determined that any error resulting from the insufficient showing of the need for secrecy was harmless in light of Gutierrez’s adequate ability to cross-examine and impeach the witnesses.

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We are told fact sections should tell a story, as if such advice is self-executing. No one explains how to tell a story. Yes, we tell stories everyday. But when we do, they come out naturally and may not be very good. Writing a fact section is not natural and needs to be good.